Dragan Milic, Attorney at law - Copyright, Media Law, Intellectual property, IT Law, Internet Law, Privacy Law and GDPR

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By the Law on Public Information and Media of the Republic of Serbia, the relation of the media towards the holders of public and political functions is regulated in such a manner that the elected, appointed, or declared holder of a public and political office is obliged to tolerate the announced critical thinking, which is related to the results of his work or policy implemented in connection with the practice of his functions, no matter if they personally feel offended by presenting these opinions.

Moreover, the same Law stipulates that the media publish information, ideas and thoughts about the happenings, events and personalities about the public has legitimate right to know about, regardless how these information were gathered, in line with the Law on Public Information and Media, as well as the fact that everyone has the right to be truly, completely and timely informed on matter of public interest, and therefore means on public information are obliged to respect that right.

With aforementioned provisions, the media are given the broader authorization to monitor the work of government agencies and political actors in society, with the aim of providing more efficient and objective public informing.

From the provisions of this Law, as well as previous case law it can be concluded that it is the obligation of the media to fully inform its audience about cases of public interest, because in a democratic system the actions of public officials must be subject to strict scrutiny not only by the government authorities, but also by public opinion and it is the obligation of media to enable this.

Media freedom restriction must be weighted against the interest of existence of open discussion in society about their operations, therefore during the examination of proportionality of required measure (for example compensation of damages) the court must strictly take into account that their judicial decision could become one form of censorship of freedom of expression which could influence media to further express their critical attitude, which would consequently lead that media can not fulfill their primal goal -  to provide information to wider audience.

Freedom of expression, right to provide information and right of the public to receive those information represent one of the most important heritage of democratic and modern society, which is guaranteed by the important conventions for regulating human right and freedom.

Regarding the right of citizens to have information, besides regular laws our jurisdiction has the obligation to apply ratifies international conventions and court decisions of European court in Strasbourg (whose decisions are being directly applied), as well as the Constitution of Republic of Serbia.

European convention for human rights protection and basic freedom quotes in article 10:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shell not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of the reputation of rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Freedom of media represents a so-called qualified freedom and must be limited only in a certain adequate and required way for realization of certain values, and in to an extent which is sufficient for that realization. The limitation must be fit, required and appropriate.

1.    In the case of European court in Strasbourg, Andreas Wabl v. Austria, 21.03.2000, article 35 quotes:

The Court refers to its firm court practice that the strong notion of necessity implies a strong social need

2.    European court in case Lingens v Austria, had the following attitude:

„The press is obliged to publish information and ideas on matters discussed in the political arena , as well as those pertaining to other sectors in the public interest . Not only does the press have the task of publishing such information and ideas , but the public has a right to receive them . "

In this case, the European Court made the opposite decision of national courts of Austria, which have found that the reporter could not prove the truthfulness of his claims which resulted in the fining of journalists.

The European Court has, in the same case, taken the position that this sentence is a kind of censorship which can prevent the journalists to continue to provide this and similar comments, that this punishment will stop the media in performing the task of transferring information and be guardian of freedom of expression.

3.     Special importance for freedom of media had the following court decision in case Thogeirson v. Iceland:

" A journalist has based his article on public opinion , which consists of voices ," he said - she said , " so without the source of personalized knowledge or research. If a journalist base on such sources which means opinion and valuation, there is no need to prove the truthfulness.  " The Court has said, "looking for the truthfulness is unreasonable and even impossible task, because the print media would not publish the content if they had an obligation to publish only completely proved fact“

4.    In a decision Dalban v. Romania, from 28.09.1999. the court has given more freedom in realization of printing freedom by quoting: 

„Freedom of the press means possibly resorting to exaggeration or even provocation "

5.    In case Peter Steur v. Holand, European Court has repeated its opinion and took the following standing: 

„When the criticism relates to public officials ,the can and should be wider when speaking of the performance of their official duties compared to criticism of private persons "

6.    In case Lindon, Otachakovsky-Laurens and July v. France:

National authorities in the first place need to assess whether there is a urgent social need to restrict freedom of expression and that during this assessment they have designated space for a free estimation.

7.    Case Klaus Beermann v. Germany:

"The Court has provided special protection to opinions - criticisms and opinions handed down against holders of public authorities, even when the same was done with a strong or exaggerated expressions , explaining their justification in the context of the objectives to be achieved by this criticism."

The same position was taken by the Appeal court in Novi Sad, which has expressed the following standing point in the decision Gž 4102/13:

Compliance with statutory and constitutional provisions that guarantee freedom of speech and public information is a prerequisite for the existence of a democratic state system where individuals and media can publicly and justifiably criticize the holders of all branches of government, especially the executive.

Lawyer Dragan Milić